Revision: March 8, 2016, midnight
\t \t\tHB 1243-FN-LOCAL - AS AMENDED BY THE HOUSE
4Feb2016... 0112h
2016 SESSION
\t16-2164
\t06/04
HOUSE BILL\t1243-FN-LOCAL
AN ACT\trelative to storm water or sewage penalties.
SPONSORS:\tRep. C. McGuire, Merr. 29; Sen. Reagan, Dist 17
COMMITTEE:\tMunicipal and County Government
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ANALYSIS
\tThis bill modifies the penalties for violations of municipal ordinances and bylaws concerning sewage or stormwater.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
4Feb2016... 0112h\t16-2164
\t06/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to storm water or sewage penalties.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Paragraph; Sewers; Bylaws and Ordinances. Amend RSA 149-I:6 by inserting after paragraph I-a the following new paragraph:
\t\tI-b. Any ordinances or bylaws adopted pursuant to this section may include a schedule of penalties for violations of the requirements adopted to ensure the proper maintenance and operation of the sewage system, stormwater system, or stormwater utility, as applicable. Any penalty so established shall constitute the civil penalty under paragraph II and shall be enforceable in the same manner. Any such penalty may be in any amount up to the maximum stated in paragraph II.
\t2 Sewers; Bylaws and Ordinances. Amend RSA 149-I:6, II to read as follows:
\t\tII. Any person who violates any ordinance or bylaw adopted pursuant to paragraph I or I-a of this section shall be subject to a civil penalty not to exceed $10,000 per day of such violation. Each day a violation continues shall be a separate offense. In addition, the municipality may petition the court for any appropriate action to prevent, enjoin, abate, or remove the violation.
\t3 New Paragraphs; Sewers; Bylaws and Ordinances. Amend RSA 149-I:6 by inserting after paragraph III the following new paragraphs:
\t\tIV. In any action brought by a municipality for injunctive relief or recovery of civil penalties under paragraph II in which the municipality prevails, the court shall award to the municipality its costs and reasonable attorney fees actually expended in pursuing the action, to be paid by the violator. For the purposes of this paragraph, recoverable costs shall include all out-of-pocket expenses actually incurred, including but not limited to inspection fees, expert fees, and investigatory expenses.
\t\tV. If any violation of a local ordinance or bylaw under paragraph I or I-a results in the expenditure of public funds by a municipality which are not reimbursed under paragraph IV, the court in its discretion may order, as an additional civil penalty, that a violator make restitution to the municipality for the funds expended.
\t\tVI. The superior court may, upon a petition filed by a municipality and after notice and a preliminary hearing as in the case of prejudgment attachments under RSA 511-A, require an alleged violator to post a bond with the court to secure payment of any penalty or remedy or the performance of any injunctive relief which may be ordered or both. At the hearing, the burden shall be on the municipality to show that it is likely to prevail on the merits, that the penalties or remedies sought are likely to be awarded by the court in an amount consistent with the bond sought, and that the bond represents the amount of the projected expense of compliance with the injunctive relief sought.
\t\tVII. The municipality may commence an action for civil penalties under paragraph II either in the district court pursuant to RSA 502-A:11-a, or in the superior court.
\t4 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t16-2164
\t\t\t\t\t\t\t\t\t\t\t11/5/15
1243-FN-LOCAL - FISCAL NOTE
AN ACT\trelative to storm water or sewage penalties.
FISCAL IMPACT:
The Department of Environmental Services, the New Hampshire Municipal Association, and Judicial Branch state this bill, as introduced, will have an indeterminable fiscal impact on local revenue and expenditures and may increase state expenditures by indeterminable amounts in FY 2017 and in each year thereafter. There will be no fiscal impact on state or county or revenue or county expenditures.
METHODOLOGY:
The Department of Environmental Services states this bill would change the civil penalty for violation of local wastewater and storm water ordinances from not to exceed $10,000 per day, to $1,000 per day for each day the violation continues after the date of written notice of the violation from the municipality. In addition, the bill provides for recovery by the municipality of reasonable costs and attorney fees. The Department states the fiscal impact would only be to municipalities that have a wastewater and storm water ordinance and an ordinance is violated. The Department assumes local revenue would decrease due to the change in penalty, and expenditures would decrease due to the ability to recover costs, but the Department cannot estimate the impact on either since they would only be triggered by violation of a local ordinance.
The New Hampshire Municipal Association states this bill would not necessarily affect municipal revenue or expenditures overall, but could affect revenue or expenditures in individual cases. The Association states it is not possible to predict the nature or amount of any such impact.
The Judicial Branch states the potential impact of this bill would be related to potential civil penalty actions in superior court, injunction actions in superior court, and civil penalty actions in the district division of the circuit court. The Branch has no information on the possible number of civil penalty actions that may be filed in superior court, but indicates such cases would be classified as complex civil cases with an estimated average cost of $723.90 for FY 2017 and $755.65 in FY 2018. The Branch has no information on the how many actions for injunctive relief to prevent, enjoin, abate, or remove the violation would be filed in the superior court, but does have information on the average cost to process such cases. The Branch states the estimated average cost of a complex equity case in the superior court would be $716.75 in FY 2017 and $740.15 in FY 2018. The Branch has no information on how many civil penalty actions would be filed in the district division of the circuit court, but does have information on the average cost to process these cases. The estimated cost to process an average civil case in the district division of the circuit court would be $117.16 in FY 2017 and $124.15 in FY 2018. The Branch states the above costs do consider the cost of any appeals that may be taken following trial and the estimated average costs are based on studies of judicial and clerical weighted caseload times which are now 8-10 years old and many changes have occurred during that time span with respect to processing these types of cases.